Information Note on the Court’s case-law 196

May 2016

Unite the Union v. the United Kingdom (dec.) - 65397/13

Decision 3.5.2016 [Section I]

Article 11

Article 11-1

Freedom of association

Alleged inability of trade union to engage in collective bargaining owing to abolition of the relevant wages council: inadmissible

Facts – The Agricultural Wages Board of England and Wales (“AWB”) was composed of employers’, wor kers’ and ministry representatives and had the power to make orders in respect of agricultural workers concerning minimum rates of wages, holiday entitlement and other terms of employment. It was abolished by section 72(1) of the Enterprise and Regulatory Reform Act 2013 following an extensive consultation process by the Government.

The applicant was the only significant trade union in the agricultural sector in the United Kingdom, representing around 18,000 members. In the Convention proceedings it complai ned that as a result of the AWB’s abolition, it had been denied the effective right to collective bargaining in the agricultural sector as, in the absence of that body, there was no effective legal mechanism for promoting or requiring collective bargaining in the sector.

Law – Article 11: The case concerned the extent of the respondent State’s positive obligation under Article 11, in particular, whether it was obliged to have in place a mandatory, statutory forum for collective bargaining in the agricultura l sector. In this sphere and in the absence of an established consensus among the member States of the Council of Europe, the respondent State enjoyed a wide margin of appreciation in determining whether a fair balance was struck between the protection of the public interest in the abolition of the AWB and the applicant’s competing rights under Article 11.

The abolition of the AWB was preceded by research into pay and conditions in the agricultural sector and a public consultation. The consultation paper pu t forward a number of reasons tending to support the AWB’s abolition, all of which were relevant to the decision where the balance between the competing interests lay. In particular, it was noted that the AWB was the only outstanding wage council and that there were indications that a number of agricultural workers were already negotiating their own agreements. The financial implications of abolition on workers and farmers and the net savings in terms of the AWB’s operating costs were assessed. The human-ri ghts implications of the proposal had also been considered.

Significantly, the applicant had not been prevented from engaging in collective bargaining. The conditions for collective agreements to be deemed to be legally enforceable in the United Kingdom – the existence of intent to be bound by the collective agreement and of an agreement in writing – did not appear unreasonable or unduly restrictive. Even accepting the applicant’s submission that voluntary collective bargaining in the agricultural sector wa s virtually non-existent and impractical, this was not sufficient to lead to the conclusion that a mandatory mechanism should be recognised as a positive obligation. The applicant remained free to take steps to protect the operational interests of its memb ers by collective action, including collective bargaining, and by engaging in negotiations to seek to persuade employers and employees to reach collective agreements and it had the right to be heard. The relevant European and international instruments, as they currently stood, did not support the view that a State’s positive obligations under Article 11 extended to providing for a mandatory statutory mechanism for collective bargaining in the agricultural sector.

Bearing in mind the wide margin of appreciation in this area, the Court was not satisfied that, in deciding to abolish the AWB, the respondent Government had failed to observe their positive obligations incumbent under Article 11. It could not be said that the United Kingdom Parliament had lacked relevant and sufficient reasons for enacting the contested legislation or that the abolition of the AWB had failed to strike a fair balance between the competing interests at stake.

Conclusion : inadmissible (manife stly ill-founded).

(See also Demir and Baykara v. Turkey [GC], 34503/97, 12 November 2008, Information Note 113 ; and National Union of Rail, Maritime and Transport Workers v. the United Kingdom , 31045/10, 8 April 2014, Information Note 173 ; and the Factsheet on Trade union rights )

© Council of Europe/European Court o f Human Rights This summary by the Registry does not bind the Court.

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